Footnotes
CHAPTER 1 - Introduction
[1]
House of Representatives Votes and Proceedings, 14 March 2012, p.
1303.
[2]
Journals of the Senate, 22 March 2012, p. 2351. Both bills were
also referred to the House of Representatives Standing Committee on Social
Policy and Legal Affairs (House committee) on 15 March 2012, House of
Representatives Votes and Proceedings, 15 March 2012, p. 1322; House of
Representatives Hansard, 15 March 2012, p. 61. The House committee tabled
an advisory report on 25 June 2012 which recommended that both bills be passed.
The advisory report is available via the House committee's website at: www.aph.gov.au/spla (accessed
26 June 2012).
[3]
Journals of the Senate, 18 June 2012, p. 2485.
[4]
The Hon Nicola Roxon MP, Attorney-General, House of Representatives
Hansard, 14 March 2012, p. 2785.
[5]
The Hon Nicola Roxon MP, Attorney-General, House of Representatives
Hansard, 14 March 2012, p. 2785.
[6]
EM, Judicial Complaints Bill, p. 2.
[7]
The Hon Nicola Roxon MP, Attorney-General, House of Representatives
Hansard, 14 March 2012, p. 2785.
[8]
EM, Judicial Complaints Bill, p. 2.
[9]
EM, Parliamentary Commissions Bill, p. 2.
[10]
The Hon Nicola Roxon MP, Attorney-General, House of Representatives
Hansard, 14 March 2012, p. 2786.
[11]
Department of the Senate, Odgers' Australian Senate Practice, 12th
edition, 2008, pp 511-513; Enid Campbell and HP Lee, The Australian
Judiciary, 2001, p. 101.
[12]
For example, see Family Court of Australia, Judicial Complaints
Procedure, available at: http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Feedback/FCOA_complaints_judicial
(accessed 2 May 2012).
[13]
For example, in the Family Court, the Deputy Chief Judge manages judicial
complaints assisted by a Judicial Complaints Adviser.
[14]
See Federal Court of Australia, Judicial complaints procedure,
available at: http://www.fedcourt.gov.au/contacts/contacts_other_complaints.html
(accessed 2 May 2012); Family Court of Australia, Judicial
Complaints Procedure, available at: http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Feedback/FCOA_complaints_judicial
(accessed 2 May 2012); Federal Magistrates Court, Judicial Complaints
Procedure, available at: http://www.fmc.gov.au/pubs/docs/Judicial_Complaints_Procedure.pdf
(accessed 2 May 2012).
[15]
Parliamentary Commission of Inquiry Act 1986, subsection 5(1).
Repealed by Parliamentary Commission of Inquiry (Repeal) Act 1986.
Further discussion and commentary on this matter is provided in Department of
the Senate, Odgers' Australian Senate Practice, 12th edition,
2008, pp 511-538; see also Enid Campbell and HP Lee, The Australian
Judiciary, 2001, pp 102-103.
[16]
Enid Campbell and HP Lee, The Australian Judiciary, 2001, pp
102-103.
[17]
Further examples in NSW are outlined in Department of the Senate, Odgers'
Australian Senate Practice, 13th edition, 2012, pp 684-685,
extract tabled by the Clerk of the Senate at the committee's public hearing on
11 May 2012; see also Enid Campbell and HP Lee, The Australian
Judiciary, 2001, pp 106-108.
[18]
See Enid Campbell and HP Lee, The Australian Judiciary, 2001, pp
105-106; The Hon James Thomas AM, Judicial Ethics in Australia, 3rd
edition, 2009, pp 155-157; Department of the Senate, Odgers' Australian
Senate Practice, 13th edition, 2012, pp 683-684, extract tabled
by the Clerk of the Senate at the committee's public hearing on 11 May 2012.
[19]
Constitutional Commission, Final Report of the Constitutional
Commission, Volume 1, 1988, p. 406.
[20]
Constitutional Commission, Final Report of the Constitutional
Commission, Volume 1, 1988, p. 406.
[21]
Australian Law Reform Commission, Managing Justice: A Review of the
Federal Civil Litigation System, Report 89, February 2000, p. 11, available
at www.alrc.gov.au/report-89
(accessed 5 May 2012).
[22]
Australian Law Reform Commission, Managing Justice: A Review of the
Federal Civil Litigation System, Report 89, February 2000, p. 12.
[23]
Australian Law Reform Commission, Managing Justice: A Review of the
Federal Civil Litigation System, Report 89, February 2000, p. 31.
[24]
Senate Legal and Constitutional Affairs References Committee, Australia's
Judicial System and the Role of Judges, December 2009, available from the
committee's website: www.aph.gov.au/senate_legalcon.
[25]
Senate Legal and Constitutional Affairs References Committee, Australia's
Judicial System and the Role of Judges, December 2009, p. 95. The Judicial
Commission of NSW was established under the Judicial Officers Act 1986
(NSW). It functions to assist that state's courts achieve consistency in
sentencing, and it supervises appropriate judicial education, as well as
examining complaints against judicial officers. Judicial complaints which are
investigated by the Judicial Commission of NSW can be dismissed, referred
to the relevant head of jurisdiction for appropriate action, or referred to a
Conduct Division for further investigation. In investigating judicial
complaints, the Conduct Division has the functions, protections and
immunities of a royal commission. The Conduct Division must either provide a
report to the relevant head of jurisdiction or a report to the Governor setting
out whether a complaint is wholly or partly substantiated, and whether it could
justify parliamentary consideration of the removal of the judicial officer from
office: Judicial Commission of NSW, Guide for Complainants, available
at: www.judcom.nsw.gov.au (accessed 5
May 2012).
[26]
Senate Legal and Constitutional Affairs References Committee, Australia's
Judicial System and the Role of Judges, December 2009, p. 73.
[27]
Senate Legal and Constitutional Affairs References Committee, Australia's
Judicial System and the Role of Judges, December 2009, p. 97.
[28]
Australian Government response to Senate Legal and Constitutional Affairs
References Committee's report Australia's Judicial System and the Role of
Judges, pp 4-5, available from the committee's website: www.aph.gov.au/senate_legalcon.
[29]
Senate Legal and Constitutional Affairs References Committee, Australia's
Judicial System and the Role of Judges, December 2009, p. 7.
[30]
Australian Government response to Senate Legal and Constitutional Affairs
Committee report Australia's Judicial System and the Role of Judges, p.
1.
[31]
Senator Linda Kirk, Senate Hansard, 11 September 2007, p. 35; the
Hon Duncan Kerr SC MP, House of Representatives Hansard, 31 May 2010, p.
4709.
CHAPTER 2 - Judicial Complaints Bill
[1]
EM, Judicial Complaints Bill, pp 8-9.
[2]
EM, Judicial Complaints Bill, pp 9-10.
[3]
Submission 4, p. 1.
[4]
Submission 7, p. 4.
[5]
Submission 7, p. 4.
[6]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 2.
[7]
Submission 7, pp 4-6.
[8]
Submission 7, p. 3.
[9]
Submission 7, p. 3.
[10]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 1.
[11]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 1.
[12]
Committee Hansard, 25 May 2012, p. 4.
[13]
Submission 7, pp 4-6.
[14]
Submission 6, p. 5.
[15]
Submission 6, p. 5.
[16]
Submission 7, p. 5.
[17]
Committee Hansard, 11 May 2012, p. 8.
[18]
Committee Hansard, 11 May 2012, p. 8.
[19]
Committee Hansard, 25 May 2012, p. 3.
[20]
Committee Hansard, 25 May 2012, p. 1.
[21]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 4.
[22]
Federal Court of Australia, Submission 1, p. 1; Judicial Conference
of Australia, Submission 4, pp 1-2.
[23]
Submission 4, p. 2.
[24]
Submission 5, p. 9.
[25]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 5.
[26]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 5.
[27]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 2.
[28]
Section 17, High Court of Australia Act 1976.
[29]
For example, Canadian Judicial Council, Ethical Principles for Judges,
2004, available at: http://www.cjc-ccm.gc.ca/cmslib/general/CJC-CCM-Procedures-2010.pdf
(accessed 30 May 2012).
[30]
Council of Chief Justices of Australia and Australasian Institute of
Judicial Administration, Guide to Judicial Conduct, 2nd ed,
2007, available at: http://www.supremecourt.wa.gov.au/publications/pdf/GuidetoJudicialConduct(2ndEd).pdf
(accessed 30 May 2012).
[31]
Council of Chief Justices of Australia and Australasian Institute of
Judicial Administration, Guide to Judicial Conduct, 2nd ed,
2007, p. 1 (Guide). The Guide identifies three objectives of the principles
applicable to judicial conduct: to uphold public confidence in the
administration of justice; to enhance public respect for the institution of the
judiciary; and to protect the reputation of individual judicial officers and of
the judiciary. The Guide also identifies three basic principles against which
judicial conduct should be tested to ensure compliance with the above
objectives: impartiality; judicial independence; and integrity and personal
behaviour (p. 3).
CHAPTER 3 - Parliamentary Commissions Bill
[1]
However, the definitions for 'misbehaviour' and 'incapacity' exclude
clause 73 of the Parliamentary Commission Bill dealing with misbehaviour or
incapacity of commission members. These terms have their 'ordinary meaning' in
clause 73.
[2]
Committee Hansard, 11 May 2012, p. 4.
[3]
Submission 2, p. 3.
[4]
Committee Hansard, 11 May 2012, p. 4.
[5]
Committee Hansard, 11 May 2012, p. 5.
[6]
Submission 2, p. 9, quoting Department of the Senate, Odgers'
Australian Senate Practice, 12th edition, 2008, p. 516.
[7]
Submission 14, p. 1.
[8]
Submission 14, p. 2.
[9]
Submission 14, p. 2.
[10]
Submission 14, p. 2 (emphasis in original).
[11]
Submission 3, p. 3.
[12]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 3.
[13]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 2.
[14]
Submission 7, p. 7.
[15]
Submission 7, p. 7 (emphasis in original).
[16]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 3.
[17]
Supplementary Submission 2, pp 1-2.
[18]
Submission 2, p. 2.
[19]
Submission 2, p. 3.
[20]
Submission 2, p. 4.
[21]
Submission 2, p. 4.
[22]
Submission 3, p. 1.
[23]
Submission 7, p. 2.
[24]
Submission 2, p. 5 (emphasis in original).
[25]
See, for example, Committee Hansard, 11 May 2012, pp 3 and 21.
[26]
Response to question on notice provided by the Clerk of the Senate on 16
May 2012.
[27]
Submission 5, p. 4.
[28]
Submission 2, p. 4.
[29]
Committee Hansard, 11 May 2012, p. 1.
[30]
Submission 3, p. 6.
[31]
Submission 3, p. 7.
[32]
Committee Hansard, 25 May 2012, p. 3.
[33]
Submission 3, p. 8.
[34]
Committee Hansard, 25 May 2012, p. 2.
[35]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 7.
[36]
Submission 13, p. 1.
[37]
Submission 2, p. 7.
[38]
Submission 2, p. 7.
[39]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 5.
[40]
Submission 2, p. 7.
[41]
Committee Hansard, 11 May 2012, p. 2.
[42]
Submission 2, p. 7. See Parliamentary Commission of Inquiry
(Repeal) Act 1986, section 6.
[43]
Ms Katrina Fairburn, Attorney-General's Department, Committee Hansard,
11 May 2012, p. 25.
[44]
Submission 2, p. 8.
[45]
EM, Parliamentary Commissions Bill, p. 40.
[46]
Submission 2, p. 8.
[47]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 5.
[48]
Submission 2, pp 8-9.
[49]
Committee Hansard, 11 May 2012, p. 2.
[50]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 5.
[51]
For example, Professor Andrew Lynch, Gilbert and Tobin Centre of Public
Law, Committee Hansard, 25 May 2012, p. 1; Liberty Victoria, Submission
8, p. 1.
[52]
Australian Law Reform Commission, Managing Justice: A Review of the
Federal Civil Litigation System, Report 89, February 2000, pp 239-240.
[53]
Harry Evans, 'Parliament and the Judges: the removal of federal judges
under section 72 of the Constitution', (1987) 2(2) Legislative Studies,
p. 29.
[54]
Clauses 79 and 48, Parliamentary Commissions Bill.
[55]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 5.
ADDITIONAL COMMENTS BY LIBERAL SENATORS
[1]
Submission 2, Supplementary submission, pp 1-2.
[2]
Submission 7, p. 7.
[3]
Response to questions on notice provided by the Attorney-General's
Department on 24 May 2012, p. 3.
DISSENTING REPORT BY SENATOR THE HON BILL HEFFERNAN
[1]
Submission 7, p. 3.
[2]
Scholars of the University of Adelaide Law School, Submission 7,
p. 5; Professor Andrew Lynch, Gilbert and Tobin Centre of Public Law,
Committee Hansard, 11 May 2012, p. 8.
[3]
For example, see Clerk of the Senate, Submission 2, p. 4.
[4]
Submission 14, p. 2.
[5]
Department of the Senate, Odgers' Australian Senate Practice, 13th
edition, 2012, p. 46-48.
[6]
Subsection 16(3).
[7]
Submission 3, p. 6.
[8]
Senate Legal and Constitutional Affairs References Committee, Australia's
Judicial System and the Role of Judges, December 2009, p. 95.